(cross posted at the Citizen Media Law Project)
On March 29, 2010, U.S. District Judge Joel Pisano of the federal court for New Jersey dismissed a defamation claim brought by freelance photographer Peter Murphy against two radio "shock jocks" who alleged that was homosexual. Murphy v. Millennium Radio, Civil No. 08-1743 (D. N.J. 2010).
In making his ruling, Pisano rejected the rationale of Gray v. Press Communications, 342 N.J. Super. 1 (App. Div. 2001), a 2001 decision by the Appellate Division of the New Jersey Superior Court, which held, citing the weight of authority from other states, that
Although society has come a long way in recognizing a persons' right to freely exercise his or her sexual preferences, unfortunately, the fact remains that a number of citizens still look upon homosexuality with disfavor. Accordingly, we conclude that at the very least, a false accusation of homosexuality is reasonably susceptible to a defamation meaning.
Pisano instead looked to Lewis v. Harris, 188 N.J. 415 (2006), in which the New Jersey Supreme Court held that "To comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, the State must provide to committed same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual married couples," by either providing for same-sex marriage or by creating "a parallel statutory structure by another name" to accomplish such equality. [The New Jersey Legislature responded by creating civil unions. See N.J. S.A. 37-1-28, et seq.]
In his ruling on the photographer's defamation claim, Pisano held that Lewis showed that the attitude towards homosexuality had changed in New Jersey since the decision in Gray.
Given the decision in Lewis and the recognized evolution of the societal landscape, it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual 'tends to so harm the reputation of that person as to lower him in the estimation of the community as to deter third persons from associating or dealing with him.
Murphy, slip op. at 14-15.
Pisano also dismissed Murphy's defamation claims against the disc jockeys and their station over comments that the photographer was "a man not to be trusted" and someone whom "a person should avoid doing business [with]," as well as Murphy's copyright and Digital Millenium Copyright Act claims.
The disc jockeys' on-air comments about Murphy stemmed from a copyright dispute that the photographer had with their station after the station held a contest inviting listeners to alter a copyrighted photograph of the disc jockeys taken by Murphy for a local magazine.